When new legislation passes, PSBA is seen as the leader in analyzing it and helping members make sense of it.

No Child Left Behind, NCLB

Before the Senate Education Committee
April 24, 2007

Good morning, my name is William LaCoff. I am a school director in the Owen J. Roberts school district in Chester County and the 2007 president of the Pennsylvania School Boards Association. Thank you for giving PSBA the opportunity to testify on what is undoubtedly the most important education policy decision facing Congress in the last five years - the reauthorization of the Elementary and Secondary Education Act, particularly those provisions that make up what we all know as the No Child Left Behind Act.

PSBA, along with the other state school boards associations, has joined with the National School Boards Association in introducing and supporting H.R. 648, the No Child Left Behind Improvements Act of 2007. A summary of the bill's major provisions is attached to my testimony.

Generally speaking, this legislation is about accountability and about fairness. There is not a school board member, school administrator or teacher that does not want to be held accountable for the academic performance of the children in their school district, school or classroom. No Child Left Behind provides a framework for that accountability system; however, there are many flaws that need to be fixed. These flaws tend to render some of the act's provisions and goals unfair and difficult to attain even by the most well intentioned school employees or board members. Let me point out some of the major areas that are addressed in the bill:

Adequate Yearly Progress - As you know, Adequate Yearly Progress, or AYP, is the standard by which the act measures the effectiveness of all public schools and school districts. Currently, the act states that a school or school district can be deemed to have met its AYP only if a certain percentage of students in the aggregate and in each of the subgroups have scored proficient or better on a state-sponsored test. In Pennsylvania , this is the PSSA test. The percentage is determined by each state in accordance with its state plan.

PSBA believes that this provision ignores a great deal of progress that school districts make with students each year. Some students make tremendous progress during the school year, despite the fact that their test scores may not have reached the proficient level. Under the current system of measurement, the act ignores this kind of progress.

H.R. 648 would allow the use of gain score approaches by the states. The use of this method would recognize schools and school districts for the effectiveness they've shown in increasing test scores, but it does not unduly punish them just because those scores have not yet reached the proficient level. It also recognizes NCLB's goal for continued improvement of each child.

Another example related to the making of AYP is with the law's provisions regarding subgroups. Generally, NCLB states that if a school district or a school fails to meet AYP for two consecutive years or more in the same subject, it will be subject to sanctions. However, if any subgroup of 40 or more students in one of the identified classes1 fails to reach its AYP in a subject for just one year and then a different subgroup fails to meet its AYP in a different subject in the following year, the district or the school is subject to sanctions. This occurs, even if the first group reaches its goals in the second year. This "revolving door" effect is most likely to affect large and diverse school districts and individual schools and punishes them even before they have an opportunity to address the failure of the second group to reach AYP. HR 648 would add language to the act that would apply sanctions to districts and schools only when AYP is not met by the same subgroup in the same subject or indicator for two or more consecutive years.

Assessments - The second major area that HR 648 addresses is the area of assessments. The major issue here is with the nature of the assessment tool for students with disabilities and students who have limited English proficiency. Students with disabilities are required to take the same tests as non-disabled students and at the grade level that is commensurate with their age, even though the very definition of their disability may be that they are able to perform only at a level that is one or two grade levels below their age cohort. Current regulations allow school districts to count 1% of all test takers who score proficient on an alternate assessment for AYP if they meet the definition of a student with the most significant cognitive disabilities. Similarly, another 2% can be counted for AYP on modified assessments if they meet the definition of having "persistent academic disabilities." These two definitions restrict the ability of a disabled student's IEP team, those individuals who are charged with creating a specialized education program for the student based on his or her abilities, to determine the most appropriate way of assessing the achievement of students with disabilities who do not neatly fall within these definitions. Additionally, the use of alternative assessments, such as out-of-level testing for AYP purposes, is prohibited by the U.S. Department of Education, despite the judgment of the IEP team. This puts NCLB squarely in opposition to provisions of IDEA. Which federal law do we obey and which do we break?

HR 648 would permit states and school districts to count up to 3% of the scores of those who take alternative tests, including the use of gain scores or out-of-level testing. In doing so, the IEP team will determine, with the parent's consent, whether the student should take alternative assessments based on the evaluation of such student and the services provided under IDEA.

NCLB does not effectively hold schools accountable for the performance of students with limited English proficiency because 1) some LEP students' academic backgrounds from their native countries are so far below grade level that counting their scores for AYP based on grade-level standards when they have been in the United States for less than three years is inappropriate and 2) states do not yet have valid and reliable standardized tests to measure these students' academic performance.

HR 648 would authorize districts to provide an alternative assessment - as determined by the local team overseeing the LEP student's education plan and on an individual case-by-case basis that is based on making specific gains toward meeting state standards for AYP for up to three years. Existing regulations would be codified to allow 1) first-year students in the United States to have their reading test scores exempted from the calculation of AYP and 2) students who exited the LEP program to be counted toward that subgroup's AYP for up to three years rather than the current two.

Sanctions - The third major issue that I want to address is the issue of sanctions. As you know, NCLB provides sanctions for districts and schools that do not meet their AYP for two consecutive years. The sanctions become more severe with each consecutive year that the district or school misses their AYP. The highest level of sanction under NCLB is called restructuring, in which a school district or school must totally alter their form of governance. Specifically, the choices for a school district or school under restructuring are: 1) to contract with a private management company; 2) convert the school or entire district to a charter school or district; 3) petition for a state takeover, or 4) fire all employees who are responsible for the school's or district's failure. Unfortunately, because of the provisions regarding AYP, specifically the provision that all subgroups must meet AYP, a district could be forced to restructure if only 40 students fail to make AYP 2. Consider the case of the School District of Philadelphia , which has 175,000 students. If 40 out of 175,000 students fail to make AYP, is that a true indication of a failing school district? Remember that with the current use of cut-scores rather than the proposed gain-scores, a single student missing a single question could determine whether or not Philadelphia , or indeed Owen J. Roberts, makes AYP.

HR 648 would authorize states to limit the use of restructuring where the number of students belonging to subgroups that failed to meet their AYP targets and who themselves scored below proficient total at least 35% of the enrollment.

Sanctions should also be aligned with the needs of schools and students. When a school or school district is first identified for improvement it must provide school choice within the district in the first year and provide supplemental education services, a form of tutoring, in the second year. All students in an identified school are eligible for school choice and all of its low-income students are eligible for supplemental education services. This policy is overly broad and does not target resources for students who need the most help. School choice does not help low performing students because those who transfer tend to be high performing students. Additionally supplemental education services funding is being diverted away from those who need it the most because students do not have to be low achieving to be eligible for those services, merely low-income. Also, school districts must reserve 20% of their Title I funds for supplemental education services and transportation for students who take advantage of the school choice option. Because Congress is able to fund Title I at only 50% of its authorized level, the reserved amounts for these two options are not well spent under the current eligibility requirements because these scarce resources do not target low achieving students.

HR 648 would provide that school choice and supplemental education services will be available to only those students that belonged to a subgroup that failed to meet AYP targets and were themselves unsuccessful in scoring proficient or above.

Funding - Finally, I would be remiss if I did not mention funding. Unfortunately, both Title I, the main funding source of funding for the No Child Left Behind Act, and funding for the Individual with Disabilities Education Act have both fallen victim to budget cuts in the last few years. It is important to note that any further cuts will put additional pressure on local school budgets at the very same time everyone is asking school directors to hold back on increasing property taxes and at the very same time that you have a difficult state budget staring you in the face.

We are asking for line item increases of $2.5 billion in each program. This would go a long way in restoring the cuts that have been made and would allow for the necessary expansion to occur in both areas. Fortunately, through bi-partisan efforts, both the House and Senate Budget resolutions would fund these programs adequately. It remains to be seen what kind of agreement can be reached with the White House, which has proposed slight budget cuts to those programs.

Thank you for the opportunity to make these comments and I welcome any questions you may have.

1 Under NCLB, students living in poverty, students belonging to a racial or ethnic minority, students with disabilities and students who are Limited English Proficient are required to be classified separately as subgroups

2 This is because the so-called N number is 40 in Pennsylvania . The N number is the minimum size of a recognized subgroup under NCLB